sustained L-1A Case: Fashion Jewelry

U.S. Department of Homeland Security 
20 Massachusetts Ave.,N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: EAC 08 079 51405 Office: VERMONT SERVICE CENTER Date: FEB 0 5 2009 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
F. Grissom, Acting Chief 
Appeals Office 
EAC 08 079 5 1405 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will sustain the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
. . 
U.S.C. § 1101(a)(15)(L). The petitioner, a New 
 in the import and wholesale of 
fashion jewelry. It claims to be a subsidiary of 
 ., located in Seoul, Korea. The 
petitioner seeks to employ the beneficiary as the president of its new office in the United States for a one-year 
period. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity within one year of approval of the petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that sufficient 
evidence was submitted to establish that the beneficiary will be primarily performing executive and 
managerial duties within one year of obtaining classification as an L-1A nonimmigrant intracompany 
transferee. Counsel emphasizes that the petitioner is already staffed with six employees, and intends to hire 
additional staff during the first year of operations. Counsel further asserts that the director erred in 
determining that the beneficiary's proposed subordinates will not be employed in managerial, professional or 
supervisory positions. Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
EAC 08 079 5 1405 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himther to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. fj 214.2(1)(3)(~) further provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive of managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition,. 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in he 
United States; and 
(3) The organizational structure of the foreign entity. 
The issue in this matter is whether the petitioner has established that the beneficiary will be employed by the 
U.S. entity in a primarily managerial or executive capacity within one year. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
EAC 08 079 5 1405 
Page 4 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(B), defines the term "executive capacity" as 
an assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on January 22, 2008. The petitioner stated on Form 1-129 that the 
beneficiary would be employed as its president, and stated that the company had six employees as of that 
date. The petitioner indicated that the beneficiary would be responsible for formulating the new office's 
merchandising policies and coordinating merchandising activities in the United States, and be compensated at 
an annual salary of $98,000. The petitioner submitted evidence that it is a subsidiary of :- 
. of Korea, a jewelry manufacturing company with annual sales of $30 million, and provided evidence 
that its parent company wired $500,000 to the U.S. company as an initial investment. The petitioner also 
provided a copy of its lease and photographs of its physical premises, which consists of offices and a 
showroom located on Fifth Avenue in New York City. 
The petitioner provided a business plan which explained the purpose for the establishment of the U.S. 
subsidiary, noting that it would initially act as a design center capable of creating customized designs for U.S. 
clients and fostering closer relationships with customers in the United States. The petitioner submitted an 
organizational chart depicting its current structure, which includes the beneficiary as president, a vice 
president, a general manager, a senior designer, and three designers. The petitioner's business plan also 
included brief job descriptions for the general manager and design staff. The petitioner indicated that the 
general manager would be responsible for controlling the design teamwork, marketing, sales and providing 
exact design direction, as well as attending meetings with customers, while the beneficiary would "manage 
the company's overall work including development, marketing, and management analysis." The business 
EAC 08 079 51405 
Page 5 
plan indicates that the company anticipates that its current staff of six employees would increase to 10-20 
employees in the near future. The petitioner provided copies of IRS Forms W-4, Employee's Withholding 
and Allowance Certificate, for its general manager and design staff. 
The director found the evidence submitted with the petition insufficient to establish that the petitioner would 
support a managerial or executive position within one year. Accordingly, the director issued a request for 
evidence (WE) in which he requested, inter alia, complete position descriptions for the beneficiary's 
proposed subordinate employees, a detailed organizational chart depicting all proposed subordinates, and 
additional photographs of the petitioner's place of business. 
In a response dated February 14, 2008, the petitioner submitted the requested detailed position descriptions 
for the beneficiary's proposed subordinates, as well as a more detailed description of the duties to be 
performed by the beneficiary as president. As these descriptions are part of the record, they will not be 
repeated here. The petitioner provided an expanded organizational chart which includes the current staff 
referenced above, as well as proposed employees that will include a saleslmarketing manager, sales 
representatives, marketing assistants, an administrative assistant and a bookkeeper. According to the 
petitioner's business plan, it anticipates sales of $6 million and payroll expenses in excess of $700,000 by the 
end of 2008. The petitioner provided a copy of its New York Form NYS-45-MN, Employer's Combined 
Withholding, Wage Reporting and Unemployment Insurance Return, for the fourth quarter of 2007, which 
shows that the petitioner paid wages of $65,386.72 to its general manager, lead designer and three design staff 
during the three-month period. 
The director denied the petition on February 29, 2008, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity within one year. The 
director's determination was primarily based on a determination that the petitioner would not employ "bona- 
fide professionals" and a conclusion that a "small-sized jewelry import'export company" does not appear to 
require a bona fide manager or executive who would perform qualifying tasks on a full-time basis. The 
director found that the beneficiary would likely be engaged in the non-managerial, day-to-day operations of 
the business. 
On appeal, counsel for the petitioner asserts that the petitioner submitted sufficient evidence to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity within one year. Counsel 
emphasizes that the beneficiary has already hired two managerial employees, three design staff, and intends to 
hire an additional managerial employee and support staff to perform the day-to-day functions of the company, 
including jewelry design, sales, marketing and administrative and financial tasks. Counsel emphasizes that 
the general manager, who has already been hired, will supervise all lower-level managerial, professional and 
support staff. Finally, counsel asserts that based on the evidence submitted, the director's determination that 
the beneficiary will be primarily engaged in the non-managerial, day-to-day operations of the company at the 
end of the first year of operations is an erroneous conclusion. 
Upon review of the petition and evidence, the petitioner has established that the United States entity will 
support the beneficiary in a primarily managerial or executive capacity within one year. Accordingly, the 
director's decision will be withdrawn and the petition will be approved. 
1 
EAC 08 079 51405 
Page 6 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
When examining the managerial or executive capacity of a beneficiary, U. S. Citizenship and Immigration 
Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or 
her subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. 
Although the director based his decision primarily on the proposed size of the enterprise and the number of 
staff, the director did not take into consideration the reasonable needs of the enterprise. As required by 
section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. In the present 
matter, although the proposed organization will not be large, the totality of the record supports a conclusion 
that the beneficiary's direct subordinates will be supervisors or managers. See section 101(a)(44)(A)(ii) of the 
Act. Further, as proposed, the petitioner's staffing levels by the end of the first year of operations will be 
sufficient to relieve the beneficiary from performing non-qualifying day-to-day operational and administrative 
duties associated with the design, marketing and sale of the company's products. In addition, the petitioner 
has demonstrated a substantial investment from the foreign entity, and a commitment to staffing the U.S. 
company, as evidenced by its quarterly wage report for the quarter preceding the filing of the petition. 
The evidence of record, considered as a whole, establishes a realistic expectation that the petitioner will be 
able to support a primarily managerial or executive position within one year. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, the petitioner has met that burden. Accordingly, the 
appeal will be sustained and the decision of the director will be withdrawn. 
ORDER: The appeal is sustained. The petition is approved.